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IN RE OPINIONS AND ORDERS OF THIS ) COURT CONTAINING NOVEL OR ) Docket No. Misc. 16-01 SIGNIFICANT INTERPRETATIONS OF LAW )

THE UNITED STATES' OPPOSITION TO THE MOTION OF THE AMERICAN CIVIL LIBERTIES

UNION FOR THE RELEASE OF COURT RECORDS

In this motion, the same movant asserts the same flawed argument in the same court for a

sixth time. As this Court made clear in multiple opinions from 2007 to 2017, there is no First

Amendment public right of access to "proceedings that relate to applications made by the

Executive Branch for the issuance of court orders approving authorities covered exclusively by"

the Foreign Intelligence Surveillance Act ("FISA"). In re Opinions & Orders of this Court

Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act, 2017 WL

427591, at * 19 (FISA Ct. Jan. 25, 2017). The American Civil Liberties Union ("ACLU") has

repeatedly resisted this holding, and does so again here. The ACLU's argument should be

rejected again by this Court.

BACKGROUND

This Court was established by Congress in 1978 and vested with jurisdiction to rule on

certain government requests for authority to collect foreign intelligence pursuant to FISA. After

this Court had been operating for nearly thirty years, beginning in 2007, the ACLU has

repeatedly sought to acquire broad public access to this Court's proceedings and rulings by

repeatedly asserting the same argument.

A. The ACLU's First Motion

In August 2007, the ACLU, through a motion to this court, asserted for the first time that

the public had a First Amendment right of access to this Court's proceedings and rulings. See In

re Motion for Release of Court Records, 526 F. Supp. 2d 484, 485 (FISA Ct. 2007) (Bates, J.)

("Motion for Release I"). At that time, the FISC had been operating for 29 years and had issued

thousands of classified, non-public rulings and only two publicly available opinions. Id. at 492.

Nevertheless, the ACLU argued that the FISC had a constitutional obligation to make public

certain orders issued in January 2007 as well as related materials. Id. at 485 & n.2.

In an exhaustively reasoned, published opinion, this Court rejected the contention that

there is a First Amendment right of access to FISC proceedings and rulings, including rulings

that"' include legal analysis and legal rulings concerning the meaning of FISA."' Id. at 493

(quoting brief of ACLU). The Court applied the test set forth by the Supreme Court in Press­

Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise If'), for determining

whether a First Amendment right of access attaches to a particular judicial place and process.

Motion for Release I, 526 F. Supp. 2d at 492. The Court observed that the right of access only

applies where both the "'experience and logic' tests" are satisfied. Id.

The Court first addressed the experience test, which asks "'whether the place and process

have historically been open to the press and general public."' Id. (quoting Press-Enterprise II,

478 U.S. at 8). The Court observed that neither the "place" - the FISC - nor the "process" -

surveillance proceedings under FISA - have historically been open to the public. Id. at 492-93.

Thus, the Court held that "the ACLU's First Amendment claim runs counter to a long­

established and virtually unbroken practice of excluding the public from FISA applications and

orders." Id at 493.

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Because the ACLU's claim failed to meet the "experience" test, its argument for access

failed "regardless of whether it passe[d] the 'logic' test." Id. The Court nevertheless addressed

that test and found an additional basis on which to reject the ACLU's First Amendment claim.

See id. at 493-97. The Court observed that, as with "any type of [judicial] proceeding," some

benefit could be expected from public access to foreign intelligence authority proceedings. Id. at

494. But the Court observed that a number of "detrimental consequences" that would follow

from public access to FISC proceedings "would greatly outweigh any such benefits." Id. The

Court found that harms to national security, such as assisting adversaries in avoiding

surveillance, seriously harming those targeted by surveillance, chilling cooperation, and

damaging relations with foreign governments, "are real and significant, and, quite frankly,

beyond debate." Id. The Court further found that applying the ACLU's proposed strict scrutiny

standard of independent review of Executive Branch classification decisions could lead to errors

that would damage national security. Id. at 495. It would also "chill the government's

interactions with the court," create an incentive to avoid judicial review where the legal need for

FISC approval is unclear, and threaten "the free flow of information to the FISC that is needed

for an ex parte proceeding to result in sound decisionmaking and effective oversight." Id. at 496.

B. The ACLU's Second Motion

In December 2007, the ACLU presented its First Amendment access argument to the

Court a second time in a "Motion for Reconsideration or Reconsideration En Banc." See

Memorandum Opinion, In re Motion for Release of Court Records, Misc. 07-01, at 2 (FISA Ct.

Feb. 8, 2008) ("Motion for Release If'). Two months later, the Court once again rejected the

ACLU's First Amendment argument. In a footnote agreed to by all of the judges of the Court,

the Court held that "the decision in this matter simply does not warrant reconsideration en bane."

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Id. at 2 n.2. In the remainder of the opinion, the Court, through Judge Bates, rejected the

arguments for reconsideration.

With regard to the "experience" test, the ACLU argued that "the appropriate inquiry is

whether there is a tradition of public access to decisions of Article III courts." Id. at 6. The

Court found this to be "an incorrect framing of the question," given that "Press-Enterprise JI

requires that the tests of experience and logic be applied to the 'particular proceeding in

question."' Id. at 6 (quoting Press-Enterprise II, 478 U.S. at 9) (emphasis in original). The

Court similarly rejected the ACLU's fallback suggestion "that the amorphous and ill-defined

category of 'decisions of broad legal significance' constitutes the proper frame of reference

under Press-Enterprise II." Motion for Release JI, at 6 n.9 (quoting brief of ACLU). The Court

again found that the "experience" test was not satisfied. Id. at 6.

With regard to the "logic" test, the Court reiterated its earlier finding that the non­

deferential judicial review of executive classification decisions that the ACLU sought "would

result in harmful consequences that outweigh any likely public benefits." Id. at 7. The Court

further observed that the ACLU had not even addressed at least two of the Court's concerns

regarding harms that would result from acceptance of the ACLU's arguments. Id. at 9.

C. The ACLU's Third Motion

In July 2008, the ACLU filed a motion to access classified FISC filings and to participate

in FISC proceedings, which advanced its First Amendment access argument for a third time. See

Jn re Proceedings Required by§ 702(i) of the FISA Amendments Act of 2008, 2008 WL 9487946

(FISA Ct. Aug. 27, 2008) (McLaughlin, J.) ("Jn re Proceedings"). The Court once again

rejected the ACLU's argument, "find[ing] no reason to reach a different conclusion" than the one

reached in Motion for Release I and Motion for Release II. 2008 WL 9487946, at *3. The Court

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found that "the 'experience' test is not satisfied because neither the 'place' nor the 'process' has

'historically been open to the press and general public."' Id. (quoting Press-Enterprise II, 478

U.S. at 8). The Court found that the 'logic' test was not satisfied because any benefits to public

access "would be outweighed by the risks to national security." Id. at *4.

D. The ACLU's Fourth Motion

In June 2013, the ACLU advanced its First Amendment argument for the fourth time.

See In re Orders of this Court Interpreting Section 215 of the Patriot Act, 2014 WL 5442058

(FISA Ct. Aug. 7, 2014) (Saylor, J.) ("In re Orders"). This time, the Court found it unnecessary

to rule on the argument, but it nevertheless observed that "[t]here is substantial reason to doubt

whether the Court, in a case in which it was necessary to reach the issue, would find that the

public has a qualified right of access to FISC opinions under the First Amendment." Id. at *4

n. l 0 (citing Motion for Release I and Jn re Proceedings).

E. The ACLU's Fifth Motion

In November 2013, the ACLU, joined by two co-movants, advanced, for the fifth time,

"in essence, the same type of legal claim," namely, "that the First Amendment guarantees a

qualified right of public access" to FISC proceedings and rulings. In re Opinions & Orders of

this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act,

2017 WL 427591, at *5-6 (FISA Ct. Jan. 25, 2017) (Collyer, P.J.) ("In re Opinions I"). The

Court noted that it had decided this issue as long ago as 2007. Id. at * 17-19 (summarizing

Motion for Release 1). The Court found that the ACLU's two arguments for disregarding or

reconsidering the Court's previous decisions were unavailing. Id. at* 19-21.

The Court observed that the ACLU' s objection to the Court's earlier application of the

"experience" test was "premised on a misreading of the Court's analysis and an overly broad

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framing of the legal question." Id. at *19. The Court held that the correct framing of the

"experience" test was whether "proceedings that relate to applications made by the Executive

Branch for the issuance of court orders approving authorities covered exclusively by FISA" have

"historically been open to the press and general public." Id. The Court found that they have not.

Id. (finding that the record "reflected a tradition of no public access").

With regard to the "logic" test, the Court found that the ACLU and the other movants had

failed "to explain why they believe [the Court's earlier] conclusion was flawed" and had failed to

"refute the Court's identification of the detrimental effects that could cause a diminished flow of

information as a result of public access." Id. at *20 (citing Motion for Release I, 526 F. Supp. 2d

at 494-96). The Court noted that the ACLU and the other movants offered only "a generalized

assertion that they disagree with" the Court. Id. Noting that disagreement, the Court held that its

prior analysis "retains its force and relevance." Id. at *21.

Given that there is no First Amendment right of access to FISC proceedings, the Court

held that the ACLU and its co-movants "have no legally protected interest and cannot show that

they suffered an injury in fact for the purpose of meeting their burden to establish standing under

Article III," and the Court thus lacked jurisdiction over their motion. Id. The Court further

observed that "public access to opinions arising from classified, ex parte FISC proceedings is

best committed to the political process," as evidenced by the USA FREEDOM Act amendment

to FISA providing that the executive branch, rather than the Court, should conduct

declassification reviews of certain FISC opinions in order to '"make publicly available to the

greatest extent practicable each such decision, order, or opinion."' Id. at *22 (quoting 50 U.S.C.

§ 1872(a)).

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F. The ACLU's Latest Motion

In October 2016, the ACLU filed the instant motion, advancing its First Amendment

right of access argument for the sixth time.1 In this motion, the ACLU seeks an "amorphous"

category ofrecords, Motion for Release II, at 6 n.9, namely, "opinions and orders containing

novel or significant interpretations of law issued between September 11, 2001 and ... June 2,

2015." Motion 1.

ARGUMENT

This Court lacks jurisdiction over the ACLU's latest motion because the ACLU cannot

establish Article III standing. While the ACLU asserts standing on the basis that "denial of

access to court opinions" is a "concrete and particularized" injury, Motion 9, this alleged injury

is insufficient because it is not an injury to a '"legally protected interest."' Jn re Opinions I,

2017 WL 427591, at *7-15 (quoting Raines v. Byrd, 521 U.S. 811, 819 (1997)).2 As this Court

has repeatedly held, there is no First Amendment or other legal right of access to FISC

proceedings. The ACLU's motion is thus without merit and should be dismissed or denied.

1 Notably, the title of this motion, "Motion of the American Civil Liberties Union for the Release of Court Records," is identical to the title of the motion the ACLU filed in 2007, except for the addition of"the," see Motion for Release I, 526 F. Supp. 2d at 485, and is materially similar to the titles of the motions filed in 2013, see Jn re Opinions I, 2017 WL 427591, at *1.

2 The jurisdictional holding in In re Opinions I is currently being reviewed by the en bane Court, but the holding that there is no First Amendment right of access to FISC proceedings and rulings is not. Thus, however the en bane Court rules in that case, the motion in this case should be denied. The only question is whether it should be denied for lack of jurisdiction or for lack of legal merit.

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I. There Is No First Amendment Right of Access to FISC Proceedings

Assuming that the First Amendment right of access to judicial proceedings applies

outside the criminal context, it attaches only to proceedings that satisfy both the '"experience"'

and "'logic'" tests set forth by the Supreme Court. See id. at *17 (quoting Press-Enterprise II,

478 U.S. at 8). The FISC's unique and sensitive national security proceedings do not satisfy

either test. Thus, for two independent reasons, the First Amendment right of access does not

apply to the FISC.

A. The Experience Test

The experience test asks "whether the place and process have historically been open to

the press and general public." Press-Enterprise II, 4 78 U.S. at 8. There is, of course, no

tradition or history of public access to either the place - the FISC - or the process - "proceedings

that relate to applications made by the Executive Branch for the issuance of court orders

approving authorities covered exclusively by FISA." In re Opinions I, 2017 WL 427591, at *19;

see also Motion/or Release I, 526 F. Supp. 2d at 493 (observing that "the FISC is not a court

whose place or process has historically been open to the public").

The ACLU argues that Section 402 of the USA FREEDOM Act, 50 U.S.C. § 1872(a),

supports its claim, but as this Court has observed, the opposite is true. In re Opinions I, 2017

WL 427591, at *22. Section 402 directs the executive branch to conduct a declassification

review of certain FISC opinions and to release either a redacted version or a summary

"consistent with national security." 50 U.S.C. § 1872(a), (c). But neither Section 402 nor any

other section of the USA FREEDOM Act altered the non-public nature ofFISC proceedings,

which continue, by statutory mandate, to be ex parte and subject to strict security measures. In

re Opinions I, 2017 WL 427591 , at *22. Moreover, in giving the executive branch responsibility

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for conducting declassification reviews, Congress chose not to establish a procedure for

obtaining FISC records "from the Court." Id.

An additional reason why Section 402 does not signal a "long tradition" of public access

to FISC proceedings, Motion 13, is that that provision applies only prospectively, and not to the

37 years of opinions that predated its enactment. A statute does not apply retroactively unless

there is a "clear indication from Congress that it intended such a result." INS v. St. Cyr, 533 U.S.

289, 316 (2001); accord Landgrafv. USJ Film Products, 511U.S.244, 265 (1994) (holding that

"the presumption against retroactive legislation is deeply rooted in our jurisprudence, and

embodies a legal doctrine centuries older than our Republic"). The text of Section 402 contains

no such indication, in contrast to another, similar provision of FISA. See 50 U.S.C. § 1871(c)

(requiring submission to Congress of certain FISA materials prospectively and retroactively

"during the 5-year period" ending on the date of the provision's enactment). Given that

Congress clearly "knows how to" add such a provision "[w]here [it] intends to," the "absence of

this language" in Section 402 "instructs ... that Congress did not intend" that Section 402 be

retroactive. Dole Food Co. v. Patrickson, 538 U.S. 468, 4 76 (2003).

Unable to dispute the FISC's unbroken history as a non-public forum, the ACLU seeks to

reframe the question as one about "judicial rulings and opinions interpreting the Constitution and

our laws." Motion 11. But this is an "incorrect framing of the question," Motion for Release JI, ·

at 6, as rulings interpreting law constitute neither a "place" nor a "process." Press-Enterprise 11,

478 U.S. at 8. The experience test is applied "to narrower classes that permit a meaningful

assessment of the effects of public access on a particular type of judicial process-for example,

district court proceedings (and related records) that are ancillary to grand jury operations."

Motion for Release 11, at 6 (citing Jn re Motions of Dow Jones & Co., 142 F .3d 496, 502-03

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(D.C. Cir. 1998); United States v. Smith, 123 F .3d 140, 148-50 (3d Cir. 1997)) (emphasis in

original).3 The ACLU's "overly broad framing" would "encompass grand jury opinions, which

often interpret the meaning and constitutionality of public statutes," but which are a

'"paradigmatic example' of proceedings to which no right of public access applies." In re

Opinions I, 2017 WL 427591, at * 19 (quoting In re Boston Herald, Inc., 321 F .3d 174, 183 (I st

Cir. 2003)).

Even accepting the ACLU's flawed framing would not assist its ultimate argument as,

even in court proceedings that are otherwise open to the public, there is no First Amendment

right to access properly classified information contained in court filings or rulings. Dhiab v.

Trump, 852 F.3d 1087, 1094 (D.C. Cir. 2017) (Op. of Randolph, J.) (observing that "from the

beginning of the republic to the present day, there is no tradition of publicizing secret national

security information involved in civil cases, or for that matter, in criminal cases," as the

"tradition is exactly the opposite"); NCR! v. Dep 't of State, 251 F .3d 192, 208-09 (D.C. Cir.

2001 ). Indeed, courts routinely provide for classified material in otherwise public proceedings to

be withheld from the public. E.g., Bismullah v. Gates, 501F.3d178, 194-204 (D.C. Cir. 2007)

(providing for non-public filing of classified information through the Court Security Officer and

prohibiting disclosure of classified information to unauthorized person), vacated on other

grounds, 554 U.S. 913 (2008); Northrop Corp. v. McDonnell Douglas Corp., 751 F .2d 395, 401

3 A number of other cases also demonstrate the specificity with which courts define the process at issue in considering whether there is a history of public access. See In re Application of New York Times Co. To Unseal Wiretap & Search Warrant Materials, 577 F .3d 401, 410-11 (2d Cir. 2009) (no right of access to sealed wiretap applications); United States v. El-Sayegh, 131 F.3d 158, 160-61 (D.C. Cir. 1997) (no First Amendment right of access to unconsummated plea agreements); Times Mirror Co. v. United States, 873 F .2d 1210, 1213-14 (9th Cir. 1989) (no history of public access to search warrant proceedings and materials); In re Washington Post, 807 F .2d 383, 389 (4th Cir. 1986) (the experience and logic tests apply to "a particular kind of hearing").

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(D.C. Cir. 1984) (entering protective order sealing classified information); United States v.

Poindexter, 732 F. Supp. 165, 167 (D.D.C. 1990) (holding that the right of access does not

extend to classified proceedings in a criminal case). Sometimes the content of classified

proceedings and filings are withheld even from the opposing party. E.g., United States v.

Sedaghaty, 728 F.3d 885, 908 (9th Cir. 2013); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir.

2004); Holy Land Found.for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003).

When court opinions contain classified information, that information is redacted from any public

release, or the opinion is withheld in full. E.g., United States v. Daoud, 761F.3d678 (7th Cir.

2014) (redacted opinion); Sedaghaty, 728 F.3d at 891 ("we are filing concurrently, under

appropriate seal, a classified opinion"); United States v. Mohamud, 2014 WL 2866749, at *2 (D.

Or. June 24, 2014) ("I am also filing an accompanying classified opinion to explain some of my

reasoning."), afj'd, 843 F.3d 420 (9th Cir. 2016).

Moreover, apart from the deferential standard applied in cases such as those brought

pursuant to the Freedom oflnformation Act ("FOIA"),4 see, e.g., Morley v. CIA, 508 F.3d 1108,

1124 (D.C. Cir. 2007), courts have long recognized that classification decisions are committed to

the executive branch. See, e.g., Dep 't of the Navy v. Egan, 484 U.S. 518, 529 (1988) ("For

reasons too obvious to call for enlarged discussion, the protection of classified information must

be committed to the broad discretion of the agency responsible.") (citation, quotation marks, and

alteration omitted); Bismullah, 501 F.3d at 187-88 ("[I]t is within the role of the executive to

acquire and exercise the expertise of protecting national security [and] [i]t is not within the role

4 Notably, all of the cases that the ACLU cites for the proposition that "courts routinely scrutinize executive-branch classifications," Motion 27, are FOIA cases. See Center for Int 'l Environmental Law v. Office of the U.S. Trade Rep. , 718 F.3d 899 (D.C. Cir. 2013); Campbell v. US. Dep 'tof Justice, 164 F.3d 20 (D.C. Cir. 1999); Goldbergv. U.S. Dep 'tofState, 818 F.2d 71 (D.C. Cir. 1987).

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of the courts to second-guess executive judgments made in furtherance of that branch's proper

role."); McGehee v. Casey, 718 F.2d 1137, 1147-50 (D.C. Cir. 1983) (holding, in a case

implicating "a strong first amendment interest," that the court's role was limited to "merely ...

determin[ing] that the CIA properly classified the deleted items" and that the court "cannot

second-guess [the executive branch's] judgments on matters in which the judiciary lacks the

requisite expertise"); United States v. Smith, 750 F.2d 1215, 1217 (4th Cir. 1984) ("[T]he

government ... may determine what information is classified .... A court cannot question it.").

In this way, judicial deference to executive classification decisions is the same in other courts as

it is in this Court. See Motion for Release I, 526 F. Supp. 2d at 491 (holding that "there is no role

for this Court independently to review, and potentially override, Executive Branch classification

decisions").

Because there is no history or tradition of access to FISC proceedings or records, the

ACLU's argument fails the experience test. Moreover, even under the ACLU's erroneous

framing, the argument fails because there is no First Amendment right of access to properly

classified material, and courts may not usurp the executive branch's authority to make

classification decisions.

B. The Logic Test

Public access to FISC proceedings also fails the "logic" test. The FISC's "entire docket

relates to the collection of foreign intelligence by the federal government." Motion for Release I,

526 F. Supp. 2d at 487. Its operations are governed "by FISA, by Court rule, and by statutorily

mandated security procedures issued by the Chief Justice of the United States," which together

"represent a comprehensive scheme for the safeguarding and handling of FISC proceedings and

records." Id at 488. As this Court has previously found, "the detrimental consequences of broad

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public access to FISC proceedings or records would greatly outweigh any" benefits, and these

harms "are real and significant, and, quite frankly, beyond debate." Id. at 494. In short, given

the national security sensitivities attendant to foreign intelligence collection, FISC proceedings

are precisely the type of court process "that would be totally frustrated if conducted openly."

Press-Enterprise II, 478 U.S. at 8-9.

Once again, the ACLU seeks to reframe the question, arguing not for public access to

FISC proceedings but for a supposed constitutional right to court-imposed declassification using

a standard that, as the ACLU would apply it, would not justify withholding any conceivable

FISC opinion. See Motion 22 (asserting, without knowledge of how many classified opinions

exist or what they contain, that "the government cannot satisfy these strict standards in order to

justify withholding" any opinion sought). But the Court-imposed declassification of 14 years of

FISC opinions would similarly undermine the collection of foreign intelligence authorized by

FISA.

Were the FISC to engage in the review of executive branch classification decisions in the

manner suggested by the ACLU, the court "might err by releasing information that in fact should

remain classified," resulting in "damage to the national security." Motion for Release I, 526 F.

Supp. 2d at 495. Such error, by any court undertaking the type of review suggested by the

ACLU, is likely given that even judges with expertise in national security matters cannot "equal

[the expertise] of the Executive Branch." Id. at 495 n.31; see also Egan, 484 U.S. at 529

(holding that predictive judgments related to national security risks "must be made by those with

the necessary expertise in protecting classified information"); El-Masri v. United States, 4 79

F.3d 296, 305 (4th Cir. 2007) ("the Executive and the intelligence agencies under his control

occupy a position superior to that of the courts in evaluating the consequences of a release of

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sensitive information"). Additionally, the risk of disclosure "would chill the government's

interactions with the Court," potentially leading to forgone surveillance of national security

threats. Motion for Release I, 526 F. Supp. 2d at 496 (citing Ornelas v. United States, 517 U.S.

690, 699 (1996)). It could also incentivize government officials to conduct surveillance without

FISC approval where the need for such approval is unclear. Id. And, in cases that were brought,

"the free flow of information to the FISC that is needed for an ex parte proceeding to result in

sound decisionmaking and effective oversight could also be threatened." Id.

In short, the Court "could not engage in a classification review more searching than that

of a district court [in a FOIA case] without undue risk to the national security and the FISA

process." Id. Of course, "there would be no point in this Court's merely duplicating the judicial

review that the ACLU, and anyone else, can obtain by submitting a FOIA request," id. at 496

n.32, and this Court would lack jurisdiction over such a claim in any event, see 5 U.S.C.

§ 552(a)(4)(B).

It has been a decade since this Court first explained the significant harm that could result

from the ACLU's suggested review, and the ACLU is still unable "to explain why [it] believe[s]

this conclusion was flawed" or to "otherwise refute the Court's identification of the detrimental

effects that could cause a diminished flow of information as a result of public access." In re

Opinions/, 2017 WL 427591, at *20. That is because there is no way that the non-deferential

judicial review of executive branch classification determinations requested by the ACLU can be

squared with the need to protect national security. For that reason, among others, the ACLU's

proposal fails the logic test.

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Il. The ACLU Cannot Assert Rights under FISC Rule 62

Just as the First Amendment provides the ACLU with no "legally protected interest,"

Raines, 521 U.S. at 819, in access to FISC proceedings and rulings, the ACLU can assert no right

of access pursuant to FISC Rule 62. That rule provides that the process for publishing FISC

opinions can begin sua sponte by the authoring judge "or on motion by a party." FISC, Rule of

Procedure 62(a) (2010). As the ACLU is neither an authoring judge of any opinion nor a party

to any of the underlying cases at issue, Rule 62 gives it no rights. Because the ACLU possesses

no legally protected interest in access to FISC opinions, whether derived from the First

Amendment, Rule 62, or any other source, this Court lacks jurisdiction over the ACLU's motion,

and "the Court may not consider any other legal arguments or requests for relief' from the

ACLU.5 In re Opinions I, 2017 WL 427591, at *21 n.17.

Additionally, Rule 62 is a rule of procedure for litigation pending before the Court, not a

substantive right for the general public. As such, it provides no cause of action that could

support a claim. For this reason as well, the ACLU's Rule 62 claim should be dismissed.

III. The ACLU Has an Adequate Remedy in District Court

That this Court lacks jurisdiction over the instant motion should not obscure the fact that

the ACLU, and any citizen, has a route to seek access to those FISC opinions and portions of

opinions that it believes are not properly classified. As this Court informed the ACLU long ago,

5 Even if the ACLU had standing to assert a First Amendment claim, it would still lack standing to assert a claim based on Rule 62. Because "standing is not dispensed in gross," Town of Chester v. Laroe Estates, Inc.,_ U.S._, 2017 WL 2407473, at *5 (June 5, 2017) (quotation marks omitted), "a plaintiff must demonstrate standing for each claim [it] seeks to press" and "for each form of relief' it seeks. Id. (quotation marks omitted); accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (quotation marks omitted). To the extent that this Court previously suggested otherwise in In re Orders of this Court Interpreting Section 215 of the Patriot Act, 2013 WL 5460064, at *5 (PISA Ct. Sept. 13, 2013), it was in error. This Court's more recent opinion in In re Opinions I provides the correct analysis.

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that process is the one set forth by the Freedom of Information Act. See Motion for Release I,

526 F. Supp. 2d at 497.

In fact, another organization is currently pursuing a similar category of FISC opinions

through the FOIA process. See Electronic Frontier Found. v. US. Dep 't of Justice, No. 3: 16-cv-

2041-HSG (N.D. Cal.). The Department of Justice has begun processing for potential release

those currently non-public FISC decisions, orders, and opinions that were submitted to Congress

from July 1, 2003 to June 1, 2015 pursuant to the government's obligation to provide Congress

with all FISC rulings "that include significant construction or interpretation" of FISA. See id.,

ECF No. 39 (stipulation); 50 U.S.C. § 187l(a)(5). To the extent that the Department of Justice

withholds material on the basis of classification, see 5 U.S.C. § 552(b)(l), the plaintiff will have

the option of seeking review of that determination by a district court applying a deferential

standard of review that, unlike the standard of review advanced here by the ACLU, will not pose

undue risk of harm to national security.6

6 Of course, in the event that the government asserts any other FOIA exemptions in that case, those too would be subject to district court review.

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CONCLUSION

For the reasons stated above, the ACLU's motion should be dismissed for lack of

jurisdiction.

June 8, 2017 Respectfully submitted,

DANA J. BOENTE Acting Assistant Attorney General

for National Security

STUART EVANS Deputy Assistant Attorney General National Security Division

Isl Jeffrey M Smith JEFFREY M. SMITH U.S. Department of Justice National Security Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 Phone: (202) 514-5600 Fax: (202) 514-8053

Attorneys for the United States of America

17

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the United States' Opposition to the Motion of the

American Civil Liberties Union for the Release of Court Records was served by the Government

via Federal Express overnight delivery on this 8th day of June 2017, addressed to:

Patrick Toomey ACLU Foundation 125 Broad St., 18th Floor New York, NY 10004

Counsel for Movant ACLU

Isl Jeffrey M Smith